Karnataka High Court
The Bangalore Development Authority vs Smt Shantha Ben on 3 June, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:18710
RFA No. 1287 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR FIRST APPEAL NO. 1287 OF 2009 (DEC)
BETWEEN:
THE BANGALORE DEVELOPMENT AUTHORITY,
HEAD OFFICE, SANKEY ROAD,
KUMARA PARK(WEST),
BANGALORE - 20,
REP. BY ITS COMMISSIONER.
...APPELLANT
(BY SRI. B. LETHIF, ADVOCATE)
AND:
1. SMT. SHANTHA BEN,
W/O SRI. KESHAVA BHAR PATEL.
2. SRI. MANILAL,
Digitally signed by S/O SRI. BHIMAJI PATEL,
GEETHAKUMARI
PARLATTAYA S
Location: High Court BOTH ARE R/AT
of Karnataka
JOGUMAYA SAW MILL,
OLD MADRAS ROAD,
VIJINAPURA,
DOORAVANINAGAR POST,
BANGALORE - 560 016.
BY THEIR GPA HOLDER
SRI. JAGADISH SINGH.
...RESPONDENTS
(BY SRI. BHASKARA M., ADVOCATE FOR R1 AND R2)
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NC: 2024:KHC:18710
RFA No. 1287 of 2009
THIS RFA IS FILED U/S 96 R/W ORDER XLI, RULE 1 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 06.12.2003
PASSED IN OS.NO.2845/2001 ON THE FILE OF THE XXVII
ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT
FOR DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging order dated
06.12.2003 passed by XXVII Additional City Civil Judge,
Bangalore, in O.S.No.2845/2001.
2. Since appeal was filed belatedly, along with
appeal, Miscellaneous Civil no.22725/2009 was filed for
condonation of delay of 2106 days in filing appeal. In
affidavit filed in support of application reason stated reads
as follows :-
"I state that the certified copy the order of the XXVII
Additional City Civil and Sessions Judge, Bangalore City
was applied on 03.09.2009 and copy delivered on
10.09.2009 after obtaining of the said order, we have to
take the approval by the competent authority before
preferring an appeal before the Hon'ble Court.
Thereafter, our counsel was advised and made
arrangement to prefer the above appeal. The delay in
preferring the above appeal is bonafide and not
intentional. Hence filed the accompanying application."
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3. Though, appeal was filed on 10.12.2009, pursuit
of appeal shows laxity and disinterest. Sri B. Lethif,
learned counsel appearing for appellant submitted that
since earlier counsel did not pursue appeal, same was
re-entrusted to him and immediately thereafter, office
objections were complied and taking note of fact that
property in question was worth in Crores, Bangalore
Development Authority (BDA) had put in efforts to pursue
appeal.
4. On 30.05.2024, when appeal was listed before
Court, request was made for filing better affidavit to
explain delay. As per permission granted, better affidavit is
filed today. In said affidavit, it is stated that impugned
judgment was passed on 06.12.2003, whereas, appeal is
filed on 10.12.2009. Therefore, period from 06.12.2003 to
10.12.2009 is required to be explained. But, explanation
offered reads as under :-
"7. I state that, the trial court passed a judgment on
06.12.2003 by decreeing the suit in favor of the
respondent. I state that, after passing a judgment and
decree the certified copies were communicated to the
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appellant/B.D.A. on receipt of the certified copy on
23.02.2004.
8. I state that, immediately after came to know about
the passing of judgment and decree, the law section of
the B.D.A. has entrusted the case to one of the panel
counsel immediately to prefer an appeal.
9. I state that, in the mean time there was a delay due
to administrative reasons and the entire process of
deciding to file an appeal has to be decided by the
competent authority and it has consumed some time to
get an approval."
5. Remaining contents of affidavit are in respect of
events prior to said period or subsequent and would be
irrelevant for present purposes.
6. It is rather unfortunate that BDA, a public
authority dealing with public property is not able to show
diligence in pursuit of appeal. Despite opportunity granted
for better explanation, only reason stated is that certified
copy was received by BDA on 23.02.2004 and there was
entrustment of appeal to panel counsel, without giving
particulars of date etc.
7. In any case, there is no assertion about efforts by
concerned officers of Law Section/case workers to verify
status of appeal. Even if contents of better affidavit are
NC: 2024:KHC:18710
taken into account, it is disturbing to note variation insofar
as facts of case from affidavit filed along with
Miscellaneous Civil Petition. While in affidavit it was stated
certified copy of impugned order was applied on
03.09.2009 and received on 09.12.2009. But better
affidavit would admit receipt of certified copy on
'23.02.2004'. This would indicate attempt to shift blame.
Despite having a full-fledged Legal Section, BDA had failed
to file appeal within time and thereafter resorted to hide
behind reason that certified copy was received just before
filing appeal. It also reveals that even after filing, there is
abject failure to verify status of matters. Absolutely no
explanation is offered regarding effort made from
23.02.2004 till 10.12.2009. Hence, there is absolutely no
justification for condonation of delay. Indeed, principle
insofar as condonation of delay is not to count number of
days, but reason behind it, whether it was beyond control.
8. It is also to be noted that during pendency of suit,
BDA had entrusted matter and except stating that
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thereafter, decree was passed, efforts made during
pendency of suit also are not forthcoming. State
authorities cannot be treated on a different pedestal than
regular litigants. None of scant reasons stated indicate any
case of accrual of delay being beyond control of authority,
when it had received certified copy shortly after passage of
impugned judgment and decree. It is highly unlikely for an
authority such as BDA not to have norms or mechanisms
to verify status of it's litigation, follow result and take
follow up action, in case BDA were aggrieved by result of
litigation, especially so, when it has a full-fledged 'Legal
Section'. I do not find any justifiable reason to allow
Miscellaneous Civil no.22725/2009. It is rejected.
Consequently, appeal is dismissed.
Sd/-
JUDGE
NG
